A Case of Selective Compassion

Shelby County (Memphis), Tennessee, historically set cash bail in criminal cases without stopping to ask whether people would be able to bail out. This practice unnecessarily detained people who could not afford to pay for release, but who would otherwise return to court and live peacefully in their communities. The ACLU Criminal Law Reform Project negotiated a historic settlement with Shelby County to end this practice. In retaliation, the Tennessee legislature passed HB 1719, which prohibits judges from considering an arrestee’s ability to pay when setting bail. This law is unprecedented. Our lawsuit seeks to enjoin Shelby County officials from enforcing it.

This case in the New York Court of Appeals (the highest New York state court) asks whether a government agency can conceal guidance that it issues to judges on how to apply the law in adjudicating cases. A few years ago, news reporting brought to light that a New York administrative agency has a practice of issuing such guidance to state court judges without disclosing it to the public. Because the agency's guidance informs how judges decide cases—with important implications for people’s rights—the New York Civil Liberties Union requested access to it under New York’s Freedom of Information Law. The agency denied the request, so the NYCLU sued. The NYCLU and the ACLU’s State Supreme Court Initiative are arguing that the public is entitled to the guidance and that there is a strong public interest in the transparent administration of justice.

This case asks if ORS 138.105(8)(a)(A)—which removes an appellate court’s authority to review a “sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission”—precludes appellate review of a state constitutional challenge to a within-guidelines criminal sentence. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Oregon, filed an amicus brief in support of defendant Fernandez, who seeks to challenge his sentence under the Oregon Constitution’s proportionality guarantee. The amicus brief argues that interpreting the statute to preclude review of Fernandez’s challenge would raise grave constitutional concerns under Oregon’s separation of powers and privileges and immunities doctrines.

WASHINGTON – President Biden announced today that he will commute the sentences of nearly 2,500 people impacted by the failed war on drugs – a war that devastated communities by incarcerating people for unjustly long sentences. These extreme and unjust sentencing policies of the past disproportionately impacted communities of color, particularly through the discriminatory 100:1 and subsequent 18:1 sentencing disparity between crack and powder cocaine. This announcement comes after President Biden granted commutations to 37 people on federal death row, and 1,500 people who were released to home confinement during the COVID-19 pandemic under the CARES Act. With the nearly 2,500 commutations announced today, President Biden has now granted commutations to more people than any president in our history. Cynthia W. Roseberry, director of policy and government affairs at the ACLU’s Justice Division, had the following statement: “We are thrilled with President Biden’s decision to commute nearly 2,500 sentences today. We have long advocated for the use of clemency to heal communities by returning loved ones to their families and to address the harms of our broken criminal legal system. This decision reflects the growing recognition that harsh drug sentencing laws tear communities apart by incarcerating people who otherwise would benefit from second chances and supportive services. Today’s decision, and the other acts of clemency over the last several weeks, are major steps towards remedying the shameful criminal legal policies of our past and building a more just future. “While we celebrate this progress towards justice, we know there is more we must do to repair the harm of the war on drugs and push for a criminal legal system rooted in fairness and humanity. The disparity between crack and powder cocaine remains 18:1, despite the substances being chemically identical. Congress must act swiftly to pass the bipartisan EQUAL Act, which would end the disparity once and for all.” Learn more about the ACLU’s Redemption Campaign here: https://www.aclu.org/news/topic/the-redemption-campaign-embracing-clemency